Tarango v. McDaniel

837 F.3d 936, 2016 WL 4932197
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 3, 2016
DocketNo. 13-17071
StatusPublished
Cited by18 cases

This text of 837 F.3d 936 (Tarango v. McDaniel) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tarango v. McDaniel, 837 F.3d 936, 2016 WL 4932197 (9th Cir. 2016).

Opinions

OPINION

MURGUIA, Circuit Judge:

Petitioner Manuel Tarango, Jr. appeals the district court’s denial of his petition for a writ of habeas . corpus. He claims violation of his due process right to a fair and impartial jury, where a police vehicle followed Juror No. 2, a known holdout against a guilty verdict, for approximately seven miles, on the second day of deliberations, in a highly publicized trial involving multiple police victims. Tarango argues that the Nevada Supreme Court’s decision upholding his convictions “was contrary to, or involved an unreasonable application of, clearly established federal law,” see 28 U.S.C. § 2254(d)(1), because the court failed to consider whether the contact be[940]*940tween the juror and the police vehicle prejudiced the jury’s verdict.

We hold that the Nevada Supreme Court’s decision was contrary to Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892), because the court improperly- limited its inquiry to whether the external contact amounted to a “communication” and did not investigate the prejudicial effect of the police tail. We therefore review de novo the question whether the extrinsic contact could have influenced the verdict and prejudiced Tarango. Because the trial court prevented Tarango from offering certain evidence to demonstrate prejudice, we remand for an evidentiary hearing and further fact finding.

BACKGROUND

On December 5, 1999, a rock band of off-duty Las Vegas police officers,. Metro Mike’s Pigs in a Blanket, was performing at a local bar called Mr. D’s. The bar was filled with off-duty police officers. A group of masked men entered the bar announcing a robbery, and a shoot-out ensued. Several patrons were shot, one robber was shot and killed, and one police officer, Officer Dennis Devitte, was shot several times. The surviving robbers escaped the scene and, six years later, Tarango was brought to trial on seven felony counts. The 2005 trial received considerable local media attention, and numerous Las Vegas Metro police officers attended as both witnesses and spectators.

After the jury began its deliberations, on November 1, 2005, the foreperson sent a note to the trial judge indicating that the jury had “reached a stalemate” because of a “problem juror” who had “made it very clear he does not want to be part of [the] process [and] is refusing to discuss or interact with the other jurors.” The “problem juror” separately wrote to the judge indicating that he had “doubt of which [he] feel[s] is beyond the limit of reasonable doubt,” and that deliberations were “not curing [his] doubt.” In his note, the “problem” juror identified himself as Juror No. 2.

Over Tarango’s objection,1 the judge advised the jury to continue deliberating. The next day, November 2nd, the jury returned a verdict finding Tarango guilty of all seven felony counts as charged: burglary with the use of a deadly weapon, attempted robbery with the use of a deadly weapon, conspiracy to commit robbery with the use of a deadly weapon, three counts of battery with the use of a deadly weapon, and attempted murder with the use of a deadly weapon- — all in violation of Nevada state law.

On November 3rd, the Las Vegas Review-Journal reported the guilty verdict in an article titled Man Convicted in 1999 Case. The article referenced “a juror who spoke to the Review-Journal.” Discussing the jury’s deliberation process, the interviewed juror mentioned the hold-out juror: “the case was close to a hung jury because one juror seemed.unwilling to convict following nearly two days of deliberations.”

On November 4th, prompted by the previous day’s newspaper article, Juror No. 2 wrote a letter to the court referencing the article:

I am the one Juror mentioned in the article.... I am also the Juror that wrote you the note during deliberations. It read: “I have doubt beyond the limit of what I consider reasonable doubt.” I also stated, “I did not believe further deliberations would cure that doubt.” [941]*941Further deliberations in fact, did not cure my doubt.
However, when returning to re-deliberate Wednesday November 2nd from the Henderson area, a Metro squad car followed me northbound on 1-95 and into the downtown area.
I found that action unnerving.
I realize the State has much time and money invested in this case. There were [sic] no alternate Juror. I concluded Metro somehow knew who I was and knew of my unwillingness to convict. I have never been in trouble with the law. Therefore, I relinquished my vote under duress. I only ask, within the law, please show [Tarango] leniency.

One week later, on November 11th, Juror No. 2 emailed Tarango’s trial attorney, Marc Saggese, and attached a copy of his “Letter to the Judge.” The juror told Sag-gese that he felt “compelled to notify” Saggese of the letter. Saggese promptly filed a motion to dismiss all charges with prejudice or, alternatively, to grant a new trial on the ground of juror misconduct, arguing that Juror No. 2’s communication indicated that the deliberation process had been tampered with in violation of Taran-go’s right to due process. • Under- Nevada law, juror misconduct refers to two categories of conduct: (1) intrinsic misconduct, that is, “conduct by jurors contrary to them instructions or oaths;” and (2) extrinsic misconduct, or “attempts' by third parties to influence the jury process.”2 Meyer v. State, 119 Nev. 554, 80 P.3d 447, 453 (2003). Tarango alleged both forms of misconduct, arguing that..(1) Juror No. 2 changed his vote, under pressure, rather than based, on- admissible evidence of Tar-ango’s guilt, because of (2) an improper third party influence.

In support of the motion, Saggese submitted a declaration indicating that, after the trial court-read the juror notes into the record and while deliberations were ongoing, Saggese overheard Deputy District Attorney Marc DiGiacomo report to Detective James Vacarro over the phone that one juror, Juror No. 2,'was holding out. Saggese thus indirectly corroborated Juror No. 2’s stated belief that he was being targeted as a hold-out juror by introducing evidence that members of the Las Vegas police department both knew that Juror No. 2 favored acquittal and had knowledge of Juror No. 2’s identity.3

The trial court held a full hearing on Tarango’s motion the following month. Juror No. 2, Defense Attorney Saggese, Detective Vacarro, and Deputy D.A. DiGiaco-mo were all called to testify regarding their knowledge of the alleged events and communications in question. At the hearing, the court limited the questioning of [942]*942Juror No. 2 pursuant to a provision of the Nevada Code of Evidence, Nev. Rev. Stat. § 50.065, which prohibits the admission for any purpose of testimony, affidavits, or evidence of any statement by a juror indicating an effect on the jury’s deliberative process. The court also relied on the Nevada Supreme Court case of Meyer v. State,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Clark v. Chappell
N.D. California, 2022
State v. Soto
2022 UT 9 (Utah Supreme Court, 2022)
Martin Kipp v. Ron Davis
986 F.3d 1281 (Ninth Circuit, 2021)
(HC) Ellis v. Biter
E.D. California, 2020
Ezzard Ellis v. C. Harrison
947 F.3d 555 (Ninth Circuit, 2020)
(HC) Moore v. Frauenheim
E.D. California, 2019
Richard Clark v. Kevin Chappell
936 F.3d 944 (Ninth Circuit, 2019)
United States v. Benjamin McChesney
871 F.3d 801 (Ninth Circuit, 2017)
State Of Washington v. Tyree William Jefferson
199 Wash. App. 772 (Court of Appeals of Washington, 2017)
Enrique Godoy v. Marion Spearman
861 F.3d 956 (Ninth Circuit, 2017)
United States v. Ramiro Plascencia-Orozco
852 F.3d 910 (Ninth Circuit, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
837 F.3d 936, 2016 WL 4932197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tarango-v-mcdaniel-ca9-2016.